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2009 DIGILAW 370 (CHH)

P. S. CHOUHAN. v. DEOKI HAI

2009-12-08

PRITINKER DIWAKER

body2009
ORDER 1. Heard on admission. 2. This revision is directed against the impugned order dated 9-4-1999 passed by Judicial Magistrate First Class, Durg in an unregistered complaint case dismissing the complaint itself. 3. During pendency of this revision, respondent No.3 B.S. Tirki expired and, therefore, his name was ordered to be deleted from the cause-title. 4. Contention of Shri Uttam Pandey, learned counsel for the applicant/ complainant is that the Court below has erred in law in dismissing the complaint in limine and without considering the statement of the complainant. It has been argued that the complaint has been dismissed in a hasty manner even without waiting the report of the Superintendent of Police, Durg which was called by the Court below vide order dated 16-10-1998 and 6-2-1999. Learned counsel for the applicant/ complainant submits that once the report of the police officer was called, the Court below ought not to have decided the case on merits without getting the said report. He further submits that even otherwise the grounds which have been taken by the Court below while dismissing the complaint case are unsustainable. 5. On the other hand, Shri Sudhir Verma, learned counsel for respondents No.1 and 2, Shri Arvind Singh, learned counsel for respondent No.4 and Shri Anand Verma, learned counsel for respondent No.5 support the impugned order and submit that the Court below is fully justified in dismissing the complaint which was prima facie frivolous and was filed with ulterior motive to grab money from the respondents. 6. I have heard learned counsel for the parties and perused the record as also the impugned order with utmost circumspection. On 26-8-1998 a complaint case was filed by the applicant/complainant against the five respondents including the deceased respondent B.S. Tirki, the concerned Station House Officer alleging in it that he had retired from the post of Divisional Assistant Excise Commissioner on 31-1-1997. He submitted in the complaint that he was an honest and dedicated Government officer but unfortunately a false F.I.R. (Ex.P-11) was lodged by respondent No.1 Smt. Deokibai on 23-9-1997 making allegation against him for commission of rape. He submitted in the complaint that he was an honest and dedicated Government officer but unfortunately a false F.I.R. (Ex.P-11) was lodged by respondent No.1 Smt. Deokibai on 23-9-1997 making allegation against him for commission of rape. As per the applicant/complainant, in the said case of rape, respondent No.2 Udal Satnami, father of respondent No.1 gave a false evidence before the Court below whereas the deceased respondent No.3 B.S. Tirki, the concerned Station House Officer had done faulty investigation and though the weapon and vehicle of the applicant/complainant were not used in commission of the offence yet he had seized the said weapon and the vehicle in an illegal manner. In respect of respondent No.4 J.S .Saggu, the allegation was that during his arrest, he was working as Station House Officer at Pulgaon and had misbehaved with the applicant/complainant, naked him and abused him. So far as respondent No.5 B.R. Mandawi is concerned, the allegation against him was that he had not returned the vehicle of the applicant/complainant and the seized Jeep which was given to the applicant/complainant was in bad condition and for which the respondent No.5 was responsible. 7. It is also alleged by the applicant/complainant that in Special Case No.265/1997, registered at the behest of respondent No.1, he was acquitted vide judgment dated 27 -5-1998 and since he was acquitted by the Court below, he filed the complaint case against the respondents. In the complaint, it was prayed by the applicant/complainant that the offences under Sections 109, 166, 182, 191,192,193,195,196,220,294,323,342,409 and 500 IPC be registered against the respondents. 8. In support of his case the applicant/complainant got recorded his statement under Section 200 Cr.P.C. on 11-9-1998 and except his statement there is no other statement by any of the witness. In his statement, the applicant/ complainant narrated what was stated by him in the written complaint filed by him on 26-8-1998. From the order-sheets of the Court below, it appears that after recording statement of the complainant, on 25-9-1998, the arguments were heard before registration of the case. However, on 16-10-1998, the Court below directed for calling the report from the concerned Station House Officer and thereafter the matter was adjourned for 18-11-1998. Subsequently, on the same date, the Court below modified its earlier order and directed the Superintendent of Police to get the enquiry done by some subordinate police officer and then submit the report. However, on 16-10-1998, the Court below directed for calling the report from the concerned Station House Officer and thereafter the matter was adjourned for 18-11-1998. Subsequently, on the same date, the Court below modified its earlier order and directed the Superintendent of Police to get the enquiry done by some subordinate police officer and then submit the report. Thereafter, the matter was adjourned for four dates but no report was submitted by the concerned police station. Ultimately, on 19-3-1999 the Court below directed for passing the order on 3 -4-1999. However, on 3 -4-1999, no order could be passed by the Court below as the Court was busy in some other cases and, therefore, the case was adjourned for 5 -4-1999 but on that date also the Court below was busy and on that date also the order coulg not be passed and ultimately on 9-4-1999 the order impugned has been passed dismissing the complaint of the applicant. From the order impugned, it appears that the Court below has dismissed the complaint of the applicant on the following grounds: (A) The F.I.R. was lodged on 23-9-1997 whereas the complaint was filed on 27 -8-1998 and no justification for the delay has been given by the complainant. (B) If the prosecutrix and her father made false report against the complainant then the complainant is at liberty to file a civil suit against them. (C) The police officers who were arrayed in the complaint case had done the investigation on the basis of the F.I.R. and after investigation they had filed the challan before the Court below and thus this act was done by them while performing their official duty. (D) During investigation, if the police officers had misbehaved with the complainant then the same was to be brought on record and if while performing their Government duty they had done something wrong then the prior sanction of the Government was required to be obtained and in the complaint as no such sanction has been obtained, the complaint is not tenable. (E) After complete investigation the challan was filed in the Court below and if at any point of time the complainant was misbehaved or insulted, except the statement of the complainant there is no statement of any other witness and, therefore, the same cannot be relied upon. (E) After complete investigation the challan was filed in the Court below and if at any point of time the complainant was misbehaved or insulted, except the statement of the complainant there is no statement of any other witness and, therefore, the same cannot be relied upon. (F) In relation to respondents No.1 and 2 the allegation in the complaint appears to be of civil nature and in relation to the other respondents as no sanction has been obtained from the Government, the complaint is liable to be dismissed. (G) Prima facie the offences as sought by the complainant are not made out against the respondents and, therefore, the complaint deserves to be dismissed. 9. I find no force in the argument of Shri Uttam Pandey, learned counsel for the applicant/complainant that once the Court below had called the report from the police officer, it should have waited for the said report and was precluded from passing the impugned order. It is the subjective satisfaction of the concerned Court which is important and the Court below has not committed any illegality in deciding the complaint on the basis of the material produced by the complainant which was duly considered by it. The Court below adjourned the matter for some dates but ultimately when the repent was not produced, the Court below proceeded with the case. Even otherwise, if the entire case of the complainant is taken as it is, the complainant has clubbed number of issues in one complaint itself. On the one hand, he makes allegation against respondent No.1 for making a false report of commission of rape and then makes allegation against respondent No.2 for supporting respondent No.1 in the case of rape and then makes allegation against different officers for their different acts. Under no circumstances, the offences, as alleged by the complainant, can be called to have committed in the same transaction. According to the complainant, lodging of the F.I.R. (Ex.P-11) itself on 23-9-1997 was illegal whereas no step was taken by the applicant/complainant against lodging of the said F.I.R. (Ex.P-11). Under no circumstances, the offences, as alleged by the complainant, can be called to have committed in the same transaction. According to the complainant, lodging of the F.I.R. (Ex.P-11) itself on 23-9-1997 was illegal whereas no step was taken by the applicant/complainant against lodging of the said F.I.R. (Ex.P-11). The complaint was filed by the applicant/complainant only after the judgment of acquittal dated 27-5-1998 and in the complaint the complainant has alleged that registration of the F.I.R. (Ex.P-11) on 23-9-1997 was wrong, he has been defamed and the entire investigation was done in a faulty manner and during investigation the police officers had misbehaved with him. I afraid such complaint is not tenable before the Court. Moreover, by the judgment dated 27-5-1998 the complainant has been acquitted by giving benefit of doubt and thus the officers who had done the investigation or had performed their duty in any manner during the said investigation, cannot be held liable for commission of any such offence as prayed by the complainant. A bare reading of the complaint itself shows that the complainant has alleged different incidents of different dates making specific allegations against the five respondents. Further more, the allegations, as made by the complainant, have not been substantiated by him either by examining any other witnesses or by producing any other material except the statement of the complainant alone. Various sections, as alleged by the complainant in his complaint, even if are attracted against some of the respondents then the cause of action is different and thus the complaint in its present form is not maintainable. Moreover, while passing the impugned order, the learned Court below has assigned various reasons and has come to a particular conclusion. The scope of interference in such cases is limited unless the finding of the Court below is perverse. 10. I find no reason to interfere with the impugned order. The criminal revision is dismissed. Revision Dismissed.